Friday, 16 March 2018

The Supreme Court has referred back to trial the case in
which former Prosecutor-General Johannes Tomana and former Zimbabwe Republic
Police (ZRP) Commissioner-General Augustine Chihuri are facing a $400 000 suit
for the unlawful arrest and prosecution of a Harare lawyer.

Mr Mordecai Pilate Mahlangu, senior partner at Gill,
Godlonton and Gerrans, was a key witness in the trial of the late former MDC-T
treasurer Roy Bennett for terrorism nine years ago.

He was arrested in November 2009 and spent a night in
police cells after he prepared an affidavit indicating that Mutare arms dealer
Michael Peter Hitschmann — the State’s star witness in Bennetts trial — was not
going to testify because the evidence that the State recorded was obtained
through torture.

The State accused Mr Mahlangu of having written the
affidavit on Hitschmanns’ behalf and caused him to sign it when he approached
him for advice.

Mr Mahlangu, who was later charged with trying to obstruct
the course of justice, was then acquitted of the charges.

He then sued Mr Tomana and Mr Chihuri along with two
detectives — Henry Dowa and Clever Ntini — for unlawful arrest or “merely
representing his client” Mr Hitschmann, who was accused of illegally possessing
firearms.

Mr Mahlangu lost his case in the High Court before Justice
Priscilla Chigumba, who upheld the preliminary point raised by the defendants’
lawyers, who challenged citation of their clients’ names as defendants in their
personal capacities.

Advocates Lewis Uriri and Sylvester Hashiti argued the
matter for the quartet. The Supreme Court yesterday set aside the High Court
decision and remitted the matter back to the lower court for trial.

“The matter is remitted back to the court-a-quo to be heard
before a different judicial officer,” said Justice Elizabeth Gwaunza, who heard
the matter together with Justices Paddington Garwe and Rita Makarau.

In their submissions, Mr Tomana, Mr Chihuri and the two
detectives argued that the actions complained of were done in the discharge of
their official duties, hence suing them in their personal capacities was
unlawful.

They argued that they were not properly sued and that the
matter must fail on that basis. They urged the superior court to uphold the
lower court’s decision.

The defendants’ lawyers argued that their clients acted in
the scope of their employment when they allegedly behaved in the manner
complained of and that they should have been sued in their official capacities.